Monday, October 21, 2002

PROPER STORAGE - STANDARDS AND OTHER ISSUES

MR. SCHMITT: Let me ask you a question before you comment. You can comment and answer the question at the same time. You mentioned the four degrees centigrade issue. Is there a lack or has there been a lack of research to identify what the acceptable conditions are for biological evidence storage that's long term; i.e., do we have enough research that four degrees centigrade isn't what is necessary, that 20 degrees and no humidity is sufficient for two years or four years, and if you want to go beyond, you can say something else, or is that an area that no one really has had time to get around to because you've all been actually doing cases?

MR. FERRARA: We have been storing, for example, blood samples of convicted felons, and we've got like 13 years of those samples, and they have been stored at room temperature, in a controlled environment, but basically room temperature and low humidity, and those samples have experienced - we've tested them periodically, and there has been absolutely no visible degradation of those samples for 13 years. I suspect there are more controlled studies rather than anecdotal that have been done, but we got to the point where when we moved to our new facility about five years ago, we disposed of minus 60 degree freezers for storage of those samples, and except for a great savings in our electrical bill haven't seen any difference at all whatsoever in the quality of the samples. That's properly preserved examples.

MR. SCHMITT: Lisa wants to chime in.

MS. FORMAN: There are actually a number of controlled surveys that have been done. They were done early on when those questions were first asked in court, and they're so old that I don't actually remember the published literature on them anymore, but there are a number of validation studies that were conducted, and since those studies started NIST has been collecting and testing samples now for Margaret says 20 years, but I must have been such a small child when I started there, it can't possibly be 20 years.

Many of those studies are brought into the scientific community via talks that she has given, and ultimately there will be a major peer review paper that's written on it. So there is decades worth of information, and all of us were very young when we started.

MR. SCHMITT: Dean, why do you then use four degrees centigrade still?

MR. GIALAMAS: Well, I guess the best answer I can give is that based on the studies we've done, that has been the best temperature to maintain it for this point in time. I truly believe that the four degrees centigrade is not really necessary to that degree. I think just keeping it much like Paul is doing, and that's a building consideration that we're going through right now, do we build giant walk-in freezers or are we going to build kind of a cool room that we can control humidity?

Because it's such an issue in California and related to this Attorney General's task force, the state Attorney General's task force issue, that that was a key area that we failed to really address on this task force. No one is willing to take that risk. No one wants to be the first in California to say I'm the one that took that gamble and now I'm losing out in the courtroom. Poor Woody here has got to deal with our evidence, and now he has a problem with it because I didn't store it at the right temperature.

MS. NARVESON: We've looked at this issue quite extensively also, and it comes down I think primarily to limited samples where you are on the borderline. We all know that the freeze-thaw cycle can have a detrimental effect on whatever you've got there. I'm with Paul on substantial size samples I think room temperature storage under controlled conditions is just absolutely fine, but in the area of limited samples, and you really want to be able to get as much information from that sample as possible, that's the area that causes us concern at this point in time and the legal issues because sure as I'm sitting here today, if we go to all room temperature storage, that will become the issue.

MR. GIALAMAS: One of the other comments that came up in California was not knowing where technology was going to drive again, we didn't want to be in a situation where we're saving testing samples for today's technology not knowing what is going to be knocking at the door tomorrow.

MR. SCHMITT: Let me ask you on the general issue of best practices is it helpful or does it make you nervous when someone such as NIJ comes out with best practices publications on evidence collection, evidence storage? For example, if we were to convene a group of experts just on the issue of evidence storage and we came out with a best practices and it said one of the ends of the spectrum, whether it's Paul's or Dean's, to the extent that your state doesn't do that, are you worried that then creates issues for the defense that would allow them to unfairly spin the case, creating an issue that's not in fact a real issue in the case, or do you find that it might be helpful when you're trying to make the case to your supervisors and funders that I am not crazy; here is the National Institute of Justice's best practices collection, and they say that room temperature and low humidity is just fine? How does it cut?

MR. TILSTONE: Essentially I would like to ask Steve the question because the question as posed and as reworded by you has already been answered because the ASCLD manual has quite specific instructions in it as to what is acceptable for the storage of biological evidence. It already is captured in writing what is the best practice for storage.

MR. SIGEL: But that is really coming out of the technical guidance that was given through the DAB advisory board back a number of years ago and the accreditation process looking at the quality issues in laboratories, you know, as being driven or guided by what the practitioners within the technical fields would be doing. So I guess from that standpoint if there was guidance given, ASCLD-LAB would be responding to that rather than a driving force behind that.

MR. SCHMITT: Is it better that such guidance come from a professional voluntary association of professionals versus some arm of the Federal Government? Does that make it more or less acceptable,easier or harder to defend?

MR. SELAVKA: I think something that we have to remember is the ASCLD-LAB standards are one thing and the DAB standards are one thing, but really the evidence as a system has only a very small component that includes us, and when you take that into account, the lack of harmony among agencies across our country and really worldwide is a failing because the standards should act as leverage for us to get the resources at every point of the evidence control process, not just in laboratories.

So the prosecutor knows where the holes are. You just mentioned, Syndi, about some holes in the system, and without appropriate harmonization or standards or guidelines from somebody that's authoritative, you don't have any leverage. Even though it's bad at the beginning, all quality systems start with this look in the mirror saying we're not where we should be, and it's going to take resources to get there.

MR. SCHMITT: Who is more authoritative, though, the government or a professional association?

MR. SELAVKA: There is no overriding professional association that you can rely on to do evidence as a system kind of review that I know of. I think it would have to be some August body put together by NIJ flown in from South Africa.

MR. CLARKE: I think as an end user, as an advocate of the courtroom, I don't like standards for obvious reasons because not only can it be the spin, as you used it, but also lack of compliance, which may be for a very good reason, but it might be very difficult to explain in court. At the same time if I have an analyst from an accredited laboratory, an ASCLD accredited laboratory, am I going to ask that question? Absolutely, and then we'll move on. It will be very quick.

But in terms of standards, it can range from the absurd, as in the Simpson trial, dealing with standards and lack of compliance with quality assurance protocols within the police agency, which can go on for days, or obviously in the majority of cases it's irrelevant.

So it's hard to give an answer to that question. Do they help? As an advocate for the use of science I like the existence of standards. As an advocate in the courtroom, I may despise it.

MS. HART: One of the things that we certainly struggle with at NIJ because you want to make sure you get the best information out there in the field, but at the same time you don't want to be creating problem for the people you're serving, which are the state and local governments, so sometimes it's that question of striking a balance between getting the information out there.

What does concern me is if it looks like you're doing the Cadillac standard let's say so that somebody can get more resources, what happens in that jurisdiction that can't get the Cadillac resources because the money has to go for schools or something else? Are you putting those people at a real disadvantage by issuing a publication that makes it look that they have to have the Cadillac standards or their evidence isn't any good?

MR. GIALAMAS: I really think it depends on what the standard is. If we use Paul's example of refrigeration and controlled humidity, if an agency or laboratory or let's even bring in the court system because that's the biggest part of location and storage of evidence that I have is the way courts treat their evidence once it's submitted to court, should be something that anyone can achieve. It's not something that's that unreasonable.

If we come out saying that it has to be minus four or minus 20 degrees C frozen conditions, that's a huge burden, but telling someone that they have to have an air conditioned room with a controlled humidity is a mild cost to society for the furtherance and maintenance of that evidence so that it can be preserved indefinitely.

MS. HART: So, in other words, you could put information that says this is the Cadillac standard and go down all the way.

MR. GIALAMAS: I would start the other way. Instead of starting from the top saying this is what you should do - and this is what we found in the State Attorney General's task force issue is they didn't provide a minimum recommendation; evidence should be stored here and anything is better is to the option of the agency, and the whole issue fell on accountability. The bottom line is the state didn't want to be held to coming up with this because then the next thing you know is that people would be applying for reimbursements and grants because this is a state mandated kind of issue, and I think organizations have done something similar.

I can tell you forensically the organizations I belong to, many of them don't come out with something because they know it involves more than just forensic science. It involves the court system, district attorneys, police departments, who they may or may not be a part of, so by them coming out with a standard, it affects people outside of their organization, whereas the NIJ as kind of like an overseeing body on a national level may be in an easier position to do it.

MS. HART: Is it also something that's worth looking at from what I would call like a day forward, day backward kind of question? It becomes very difficult to go back and say for all the evidence that has previously been collected we're going to go find out where it is. I can remember as a prosecutor opening up a homicide file and finding the bloody clothes of the defendant. There is no way it should be there, but that's where it was. Is it the kind of thing that is worth looking at as a two-part thing and saying even if you can't address what has happened in the past, we should go forward and establish kind of standards for how we are going to collect and preserve evidence in the future even if we can't address the back ones quite the way we want to? Is that a worthwhile strategy or not?

MS. NARVESON: I think if you were to focus on minimum standards, meaning this is what good science requires at a minimum, and then at the option of the agency or the resources of the agency they could choose to exceed those standards in all cases or in certain select cases, but I think the minimum standard which has always been what ASCLD has done is set the minimum standard.

Best practice is something else, and sometimes we get the two confused and it causes a lot of consternation, but minimum standards. I think what Paul is saying is very reasonable, and those organizations then could meet minimum standards. It just seems like it's good laboratory practice.

MR. SCHMITT: Sir, you had a comment, and then we will come over to Kim Herd.

MR. VAN NIEKERK: Thank you. We have basically designed our evidence collection kits for sexual assault evidence collection on the numerous standards of different states in the United States, for instance, New Jersey, Texas, California, Tennessee, Kentucky. We've done away with the use of glass slides, for instance, for microscopy based on recommendations emanating from New Hampshire and so forth.

In other words, those standards became a guideline for us on how to go about designing what we thought would constitute international best practices. We based our automated system on the guidelines that emanated from the National Commission on the Future of DNA Evidence working group on where DNA evidence was going in the future.

Has there been any problems, if I can ask this question? Are you aware of any major problems where people were set to a disadvantage because of standards in, for instance, something like sexual assault examinations? Has that been a problem, for instance, over the past couple of years?

MS. FORMAN: I think that it's fair to say that when you get no yield on a case, it can be a no yield for a variety of reasons. One of the reasons may be that the evidence just wasn't properly collected or stored. So that's part and parcel of what is being talked about, but I think you bring up an incredibly important point, and that is these are really questions of molecular biology, that the preservation of cellular material wouldn't necessarily just come from the forensic community, but could be part of a broader investigation.

Sue brought up a good point, and that is typically the NIJ guides deal with best minimum standards, never looking to a Cadillac, but looking to what is the least you have to do to make something work. So I think that investigating this, if NIJ chose to investigate this as a research process or as a technical working group process, it would necessarily have to go outside of just the forensic circles and include broader areas of molecular biology. I think a lot of them were addressed in that original working group publication.

MS. HERD: I would basically just echo what the last several people have said. As long as you shape it in terms of a best practice or guideline, that's a lot easier to deal with when you're in court and you have somebody that does challenge the fact that a certain laboratory doesn't abide by a certain standard, as it were.

There is a case in Minnesota now that is really just about that issue. The allegation is they're not following a certain standard, a standard that is really antiquated and has been supplanted by the DAB, but courts and defense attorneys in particular tend to just really take a grip on that, and then the rest of the community is hampered.

So it's really all in how you package it, and standards themselves are really dangerous, I think.

MR. SCHMITT: Before we move on to the next area I ask you to look at Paragraph 4 of the discussion items and see if any of those phrases are ones you want to comment on. I won't go through each one, but if anybody has a strong opinion or comment you want to make on any one of those, please speak them. I'm particularly interested in the disposition of cases issue, whether the fact that you don't know what happened to the case after you did your analysis is a real problem, but it's an open floor on any one of these other points.

MR. FERRARA: As I indicated earlier, this ultimate disposition of cases is very problematic as our databases and the use of our databases increase. It's problematic from several standpoints. One is informational, statistical. Who should we be taking samples from? What was the impact of a particular sample in a particular case?

Ultimately, for example, if you have samples from an arrestee, that cannot be searched nationally, and so one has to know when was that person who was sampled upon arrest ultimately convicted so that then that sample can be lifted up to a national level and put on NDIS where it can be searched nationally.

So I think disposition of cases is critical. Plus I think it will also establish - if there is any question about the efficacy of DNA databases, I think a good study on the disposition of these cases will dispel any reservations anyone might have as to their efficacy.

MS. CROUSE: I kind of want to make a comment on several of these in one basket. It seems that before we can actually conduct some of the new technology on casework evidence regardless if it has to do with the evidence storage all the way through to the interpretation of a DNA profile there has to be some kind of - it seems anyway that there has to be a series of standards or validations that have to be done before that can be accomplished.

One of the things I'm specifically interested in is this expert software, and there don't seem to be any guidelines, and I know that's going to have to come from a higher source, but there don't seem to be any guidelines on how to validate this procedure regardless if you use the system that South Africa is using or cybergenetics or whatever.

I think the same is with any kind of technology transfer. I'm not sure where those guidelines are going to come from to even march forward into some of these areas.

MR. DIZINNO: I would offer that possibly some of those guidelines could come out of SWGs such as SWG Dam and some of the other SWGs, whether it be another forensic area to get a group together of scientists to come up with those guidelines and pass them through the SWG and make those available.

MR. SCHMITT: Does anyone have issues on disposition of cases in a state where they don't allow DNA to be taken from arrestees or is this a Virginia problem only other than general record keeping?

MR. COFFMAN: I think it's going to be a problem for many states because Louisiana has had an arrestee statute and they haven't started it, and I really think it's what is going to happen across the country.

MR. SCHMITT: Does this issue get solved if the federal statute allows for the uploading - if the federal statute were amended to allow all samples lawfully collected under a state's law to be loaded up?

MR. COFFMAN: I would definitely like to see that if it's lawful in your state. What we're doing is sharing information. The federal system does not have any name information. They still have to go through the gatekeeper in the state. I would like to see if it's lawful and proper to collect in your state, that it is able to be shared nationally.

MR. SCHMITT: That solves your biggest problem, Paul, which is we uploaded something we weren't lawfully allowed to do.

MR. FERRARA: Yes, clearly. Obviously from our standpoint we would love to see legislation that would also presumably allow Virginia, for example, and any state as they pass statutes requiring samples upon arrest to avail themselves of federal funding for processing those samples.

Ironically in Virginia because of the current federal law, I have to do the arrestees in house at cost, and I won't be taking samples on conviction theoretically and won't be able to avail myself of any of that money. I think one can argue that well, Virginia passed that law; that's Virginia's problem, but from a standpoint of where we want to be going in the future, I think it's something we all ought to address.

Now, having that said that, arrestee law or not, I think we still need to be able to follow disposition of these cases because in many cases, depending on what happened to a case even taken on conviction, I may or may not have a sample legally up at national. I mean it's entirely possible. We're subject to audits through the IG's office and such, and it's very difficult for me to make any assurances without knowing each and every case, let alone have the resources to follow those dispositions.

MS. NARVESON: I think the other thing, too, for laboratories that are dealing with limited resources is how critical it is to know which cases really are still in the pipeline that require us to dedicate our limited resources to them. Being able to have disposition information available on an ongoing basis allows us to prioritize our assignments and use what resources we have to get the cases through the pipeline other than staying with the he said/she said cases and wasting our time where somebody has already taken a plea agreement. We could be moving on to other cases.

MR. FERRARA: Susan raises an excellent point. As an example, just this past week we made a DNA data bank hit. Our examiner calls the investigator, and the investigator says that's great, but the guy has already been charged and convicted, and we had run the analysis that we didn't have to do simply because again we weren't in a position to follow where that particular investigation or case was going.

MR. GIALAMAS: I can tell you about success stories in L.A. about communication because we have a system that the sheriff has put together which puts all the crime information, crime reports into one database so that all law enforcement agencies in Southern California can access. As part of our cold hit in doing the unsolved suspect list cases we identified about 1,300 sexual assault cases that needed to be analyzed in our agency. About 450 of those cases we didn't even need to analyze and we didn't have to go through the step of analyzing them because in looking up the system, we had realized that the case was either dismissed, it had already been adjudicated in court, and having that information now took off 450 cases of our backlog immediately just through data acquisition. So that point has already been proven at least on a local level how that can succeed.